State v. Young

• Decision Date: 14 March 1995
• Docket Number: No. A-94-495,A-94-495
• Citation: 530 N.W.2d 269,3 Neb.App. 539
• Parties: STATE of Nebraska, Appellee, v. Philip M. YOUNG, Appellant.
• Court: Nebraska Court of Appeals

Page 269

530 N.W.2d 269

3 Neb.App. 539

STATE of Nebraska, Appellee, v. Philip M. YOUNG, Appellant.

No. A-94-495.

Court of Appeals of Nebraska.

March 14, 1995.

Syllabus by the Court

1. Issue Preclusion. The four conditions which must exist in order for issue preclusion to apply are that (1) the identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or a privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.

2. Issue Preclusion: Appeal and Error. The applicability of the doctrine of issue preclusion constitutes a question of law for which an appellate court is obligated to reach a conclusion independent from the lower court's conclusion.

3. Criminal Law: Administrative Law: Drunk Driving: Licenses and Permits: Revocation. The same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person's privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one action is of no consequence to the other.

4. Criminal Law: Administrative Law: Issue Preclusion: Drunk Driving: Licenses and Permits: Revocation. A factual determination in an administrative hearing for driver's license revocation does not operate to preclude prosecution for driving while intoxicated because the administrative proceedings were not conducted by a court.

5. Criminal Law: Administrative Law: Issue Preclusion: Drunk Driving: Licenses and Permits: Revocation. Issue preclusion does not apply to criminal proceedings after an administrative determination in a driver's license revocation proceeding has been made because at least one element of issue preclusion is not present--the State has not had a full and fair opportunity to litigate the issue in the previous administrative hearing.

6. Issue Preclusion. If the issues in the two proceedings are not identical, the doctrine of issue of preclusion does not apply.

7. Double Jeopardy: Penalties and Forfeitures. A civil penalty may constitute punishment for purposes of double jeopardy.

8. Double Jeopardy: Legislature: Penalties and Forfeitures. A legislature's characterization of a sanction as civil is not final and does not foreclose the possibility that the "civil" sanction could be a penalty under the Double Jeopardy Clause.

9. Double Jeopardy: Penalties and Forfeitures. The determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.

10. Double Jeopardy: Licenses and Permits: Revocation. Under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the question is whether revoking a driver's license is remedial, and thus only a deterrent, or whether it is retribution, and thus a penalty. A license to operate a motor vehicle in this state is issued, not as a contract, but as a privilege, with the understanding that the license may be revoked for cause by the state.

11. Licenses and Permits: Revocation. The revocation of a driver's license is not a penalty for the violation of the statutes or ordinances involved.

12. Drunk Driving: Licenses and Permits: Revocation. The purpose of enacting the license revocation procedure under Neb.Rev.Stat. §§ 39-669.15 to 39-669.19 (Reissue 1988 & Cum.Supp.1992) was to protect the public by getting people with drinking propensities off the road quickly and to deter driving while intoxicated.

13. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are James E. Schaefer, of Gallup & Schaefer, Omaha, for appellant.

for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

SIEVERS, C.J., and HANNON and MUES, JJ.

HANNON, Judge.

Philip M. Young appeals his conviction for driving under the influence of alcohol in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1992). At the time of his arrest, his license was impounded pursuant to Neb.Rev.Stat. § 39-669.15 (Cum.Supp.1992), and he petitioned the Nebraska Department of Motor Vehicles for an administrative hearing to appeal the automatic revocation of his driver's license. That proceeding resulted in an administrative determination in Young's favor. Before trial, Young moved to have this case dismissed on the basis that the determinations in the driver's license revocation proceedings conclusively determined the issues in this case and the Double Jeopardy Clause applied to prevent determination of these issues again. Young appeals on the basis that the trial court erred in denying his motion to dismiss and also in finding that the evidence was sufficient to support the conviction. We conclude that the Double Jeopardy Clause does not preclude this prosecution and that the evidence was sufficient to sustain his conviction. We therefore affirm.

STATEMENT OF FACTS

On Friday, April 16, 1993, at approximately 9 p.m., Anne Ball and her son were on their way home after shopping. While traveling south on 24th Street at the intersection of 24th and M Streets, in Omaha, Nebraska, Ball noticed a car pulling out from in front of the Cardinal Bar and traveling in the same direction as she. Later, she learned that car was operated by Young. She observed that Young swerved within his lane, and at one point, he forced Ball's car off of the road and onto the curb. Five blocks later, Young ran a red light and almost collided with another vehicle. Ball became irate because of Young's driving, and she followed him in order to get his license plate number. She saw him turn into an alleyway on Railroad Avenue. She then pulled into a nearby auto body shop and reported the matter to a 911 operator over the telephone. After making the call to 911, Ball drove her car into the alley where Young's car was parked. Ball and Young engaged in a verbal confrontation. Ball then left and called 911 again. During that call, the police arrived and took Ball's statement. Two police cars then followed Ball to Young's car.

Upon arriving, Officer Gregory Hansen noticed the brake lights of a vehicle inside Young's garage come on and go off. Officer David Baker then observed Young get out of the vehicle. Baker then took Young's statement. He noticed that Young's eyes were glassy and red and that the odor of alcohol was emanating from him. Baker then asked Young if he would take field sobriety tests. Young agreed, but was argumentative when asked to actually perform the requested tests. Baker stated that Young failed the "alphabet recitation test," the "count down test," and the "manual dexterity test." Both officers testified that in their opinion, Young was intoxicated. The officers placed Young under arrest for driving while under the influence of alcohol and transported him to the police station, where a breath test was administered. The breath test showed that Young's breath had a concentration of .169 of 1 gram of alcohol per 210 liters of breath.

Ball testified that she was a nurse at the VA hospital and worked in the substance abuse treatment center, which deals with alcohol and drug abuse. She stated that as part of her job, she has substantial contact with people who are under the influence of alcohol and that she knows the common indicators of intoxication. She was not asked to render an opinion on whether Young was intoxicated, but she testified that he had the common symptoms of intoxication--that is, he had a red and flushed face, a casual At trial, George Cranford, a friend of Young, testified that on the night in question, he was at Young's residence asleep on the couch waiting for Young to get home from work. Cranford stated that at around 9 p.m., Young entered the house and started ranting about a crazy woman who followed him and started yelling at him. Cranford stated that Young then started gulping whiskey from a bottle Cranford had just opened. Young went back outside to lock up the car and shut the garage door. Cranford then went back to sleep, and by the time he woke up, Young had already been transported by police to the police station.

appearance, and slurred speech, and he swayed while he walked. She also testified that he was irrational, gruff, unruly, and addressed her with racial epithets.

Prior to trial, Young moved to dismiss the case on the basis of issue preclusion. After an evidentiary hearing, the trial court denied that motion.

ASSIGNMENTS OF ERROR

Young alleges the district court erred (1) in not finding that the doctrines of res judicata and collateral estoppel barred the State from relitigating issues or claims previously settled in the administrative license revocation hearing and (2) in not finding there was insufficient evidence to support the conclusion that Young was operating a motor vehicle while being intoxicated.

GENERAL CONSIDERATIONS

The U.S. Supreme Court has stated that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Young's counsel argues that the State's action in attempting to take...